Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

By David B. Rivkin Jr. and Lee A. Casey

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

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Transcript of David Rivkin’s appearance on Bill Bennett’s Morning in America radio show on November 18, 2013.

BILL BENNETT: David, it looks like the President lied [when he said], “if you like your plan you can keep it.” Is there any way to take legal action against the President’s administration or HHS [Dept. of Health and Human Services] for this deception?

DAVID RIVKIN: Well no, if somebody in the private sector has done that, there will be all sorts of criminal and civil options, but you cannot prosecute the President under any of those statutes. The price that he has to pay is the political price and, unfortunately, he’s not going to pay the full price, given the way the media and national Democrats are looking at it. It also, frankly, further undermines the trust of the American people in the government.
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Did you know that you cannot be trusted with knowledge of your own genetic background? That’s what the Food and Drug Administration decreed late last month when it ordered 23andMe to stop marketing its Personal Genome Service.

23andMe is at the cutting edge of mass-market genomics. For $99 the company tests a saliva sample to identify genetic markers that correspond to various conditions and predispositions, as well as ancestry. Based on these markers, the company produces a report describing genetic health risks and inherited traits, along with citations to the research that backs up its analysis and the current scientific “confidence” for each point.

The FDA does not claim that 23andMe is a scam or could cause direct injury. Instead, its concern is that people using the genome service may begin to self-manage their treatments. Essentially, the agency wants to “protect” patients from knowing about their own health.
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The National Security Agency’s surveillance hasn’t changed. Washington has.

By Mike Pompeo and David B. Rivkin Jr.

Former National Security Agency contractor Edward Snowden’s leaks have subjected the NSA’s surveillance programs to unprecedented attack, raising the possibility that Congress will not be able to pass the 2014 Intelligence Authorization bill needed to provide congressional guidance on a host of crucial national-security issues. It would be lamentable if the entirely legal and invaluable NSA surveillance program became more of a political football than it already is.

Some proposals would hamstring the NSA’s ability to obtain, store and analyze information, while forcing disclosures of now-classified operations. Balancing the intelligence community’s need for secrecy with the public’s appetite for disclosure is always difficult in a democracy. But the NSA’s programs have from the start been tailored to balance constitutional requirements, statutory authorizations and operational needs. What’s different today is not how we collect intelligence, but the new and extreme legal and policy arguments against doing so.
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Celine Gounder, infectious disease and public health specialist, Bloomberg’s Shannon Pettypiece and Washington, D.C., Partner David Rivkin, co-chair of the firm’s Appellate and Major Motions Team, discussed the future of Medicaid expansion and the Affordable Care Act with Pimm Fox on Bloomberg Television’s “Taking Stock” on July 11.

Rivkin, an outspoken adversary of the Affordable Care Act, told Bloomberg he suspects the law will come crashing down. He cited Prohibition, noting that former laws of the land have disintegrated because of massive noncompliance. The Affordable Care Act is no different, he said.

Watch full video.

David Rivkin appeared on the Opinion Journal Live to further discuss his previous Wall Street Journal article that explained President Obama’s suspension of the ObamaCare employer mandate.  Specifically, in the video Rivkin spoke about how this suspension will open the door to millions of Americans incurring a legal standing to sue.

To watch the video directly on the Opinion Journal, CLICK HERE >>